11 Protection of personal data processed
in the course of police and judicial cooperation
| (28476)
7315/07
—
| Draft Council Framework Decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters
|
| Legal base | Articles 30, 31 and 34(2)(b)EU; consultation; unanimity
|
| Department | Ministry of Justice
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| Basis of consideration | Minister's letter of 15 October 2007
|
| Previous Committee Report | HC 41-xxxiv (2006-07), para 9 (10 October 2007);
HC 41-xxvi (2006-07), para 3 (20 June 2007);
HC 41-xviii (2006-07), para 4 (25 April 2007) and see (26911) 13019/05: HC 41-i (2006-07), para 3 (22 November 2006)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Cleared
|
Background
11.1 In our consideration of this proposal, we noted that in providing
for common standards for the processing of data in the framework
of police and judicial cooperation in criminal matters under Title
VI of the EU Treaty, the draft closely followed the terms of Directive
95/46/EC of the European Parliament and the Council (the Data
Protection Directive).[28]
11.2 When we last considered this matter on 10 October
we had one remaining concern. This was over the question of whether
the measure should be confined to the transfer of data between
Member States, or whether it should also cover data which is processed
in a purely domestic context. We noted the explanation of the
Minister that recital 6a had been amended to read "to facilitate
data exchanges in the European Union, Member States intend to
ensure that the standard of data protection achieved in national
data processing matches that provided for in this Framework Decision".
We nevertheless considered that an ambiguity remained, since it
appeared to us that the reference to ensuring that national data
processing "matches" the requirements of the Framework
Decision, coupled with the provision (in Article 27a) that the
Commission should review whether cases have occurred where data
has not been shared because national provisions did not comply
with the Framework Decision, introduced a rule that was intended
to have at least some effect on national data-processing. We considered
that it should be made clear that the Framework Decision did not
apply to domestic data-processing, and asked for a further account
of the negotiations on the scope of the review by the Commission
foreseen in Article 27a.
The Minister's reply
11.3 In her letter of 15 October the Parliamentary
Under-Secretary of State at the Ministry of Justice (Bridget Prentice)
informs us of the latest state of the negotiations. The Minister
later supplied us with a copy of the text as it stood on 16 October.
11.4 In her letter, the Minister informs us that
the Presidency listed two items for discussion at the Justice
and Home Affairs Council on 18 September, namely the scope of
the measure and the question of transfers of data to third countries.
The Minister informs us that the Presidency concluded that the
measure would apply only to data which is transferred between
Member States or between Member States and bodies or information
systems that are established by acts adopted by the Council.
11.5 The Minister adds that this limited scope is
reflected in Article 1, a new recital 6 and the evaluation clause
of Article 27a. The Minister explains that the new recital 6[29]
and Article 1(2) make it clear that the scope of the Framework
Decision is limited to personal data that is transmitted or made
available by one Member State to another Member State or to an
EU body. The Minister further explains that the Member States
do not agree on whether there is competence for the Framework
Decision to deal with data that is only processed domestically,
that recital 6 simply states that no conclusion about competence
can be inferred from the limited scope of the Framework Decision,
and that this does not lead to an inference that the EU has competence
in relation to domestic processing.
11.6 The Minister explains that Article 27a provides
for the Commission to evaluate national measures to give effect
to the Framework Decision. The implementation of the Framework
Decision, including the formal limitation of its scope to cross-border
data exchange, will be the subject of evaluation three years after
the prescribed implementation date. The words in Article 27a(1)
now simply refer to the Commission examining the implications
of the provisions on scope in Article 1(2). The reference to an
examination of whether the provisions on scope have led to data
not being transmitted to other Member States or EU bodies "because
the provisions of the Framework Decision have not been applied
comprehensively at national level" have now been deleted.
11.7 The Minister adds that those consulted (including
the Information Commissioner's Office) are largely satisfied that
the new text is an improvement for the UK.
Conclusion
11.8 We thank the Minister for her letter and
for the further information she has supplied.
11.9 We agree that the new version is an improvement
for the UK, and that it now appears sufficiently clear that the
Framework Decision will not apply to purely internal domestic
data processing, and that no EU competence to do so is to be inferred.
11.10 We also consider that the revised Article
27a is an improvement, since it no longer carries any implication
that there is any obligation to apply the Framework Decision comprehensively
at national level, and thus addresses the ambiguity which concerned
us.
11.11 We have no further points to raise, and
are content to clear the document from scrutiny.
28 OJ No. L 281, 23.11.95, p.31. Back
29
This provides "The scope of the Framework Decision is limited
to the processing of personal data transmitted or made available
between Member States. No conclusions can be inferred from this
limitation regarding the competence of the European Union to adopt
acts relating to the collection and processing of personal data
at national or the expediency for the Union to do so in the future." Back
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